Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 3, Part 2, Article 58 of the
Code of Criminal Procedure of the Republic of Lithuania with
the Constitution of the Republic of Lithuania
18 November 1994, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė,
Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
pursuant to the first part of Article 102 of the
Constitution of the Republic of Lithuania and the first part of
Article 1 of the Law on the Constitutional Court of the
Republic of Lithuania, in the public court hearing of 15
November 1994 conducted the investigation of Case No 17/94
subsequent to the petition submitted by Vilnius 2d District
Court requesting to examine if item 3, Part 2, Article 58 of
the code of Criminal Procedure is in conformity with the
Constitution of the Republic of Lithuania
The Constitutional Court
has established:
1.
Vilnius 2d District Court on 13 May 1994 investigated the
civil case upon the complaints lodged by P. Makauskas and A.
Liutvinskas against the actions of officials.
Conforming to Article 81 of the Law of the Republic of
Lithuania on Operational Activities, on 26 July 1993 A.
Brazauskas and R. Dauginas were detained. They were charged
under Article 96 of the Criminal Code, which provides liability
for extortion of state and public property. The investigator
from the Procurator's Office of the Republic of Lithuania did
not allow for the lawyers P. Makauskas and A. Liutvinskas to
see their defendants. Such decision of the investigator was
approved by the vice Procurator-General.
Vilnius 2d District Court suspended by its ruling the
investigation of this case and addressed the Constitutional
Court with the petition to investigate if item 3, part 2,
Article 58 of the Code of Criminal Procedure was consistent
with Part 6, Article 31 of the Constitution.
2.
The petitioner - Vilnius 2d District Court bases his
request on the following arguments.
In Part 6, Article 31 of the Constitution it is
established that, from the moment of arrest or first
interrogation, persons suspected or accused of a crime shall be
guaranteed the right to defence and legal counsel. In court's
opinion, item 1, Article 23 of the Law on the Bar provides
concrete expression to this right as it entitles the counsel to
the right to defend natural persons and represent them,
likewise Article 24 of said Law which establishes prohibition
to hinder the counsel from seeing the client face to face.
Conforming to this, the court presupposes that item 3, Part 2,
Article 58 of the Code of Criminal Procedure contradicts Part
6, Article 31 of the Constitution.
3.
During preliminary investigation of the case, Deputy
Chairman of the Seimas Egidijus Bičkauskas, representative of
the party concerned, submitted the following explanation.
The statement specified in the petition of Vilnius 2d
District Court, that item 3, Part 2, Article 58 of the Code of
Criminal Procedure supposedly contradicts Part 6, Article 31 of
the Constitution, is groundless. The rules of this Article
providing for the participation of the interrogator and
investigator in the conversations of a counsel and his
defendant, also the control of correspondence with the suspect
or the accused are absolutely in conformity with the sixth part
of Article 31 of the Constitution, which prescribes that, from
the moment of arrest or first interrogation, persons suspected
or accused of a crime shall be guaranteed the right to defence
and legal counsel. Said norm of the Code of Criminal Procedure
not only is in conformity with the Constitution but also is in
accord with the underlying provisions of the Law on Criminal
Procedure and is based on legal practice of foreign states and
the logic of the reality our country's judicial life.
Article 31 of the Constitution declares the right of
persons suspected or accused of a crime to defence. The right
to defence comprises the whole complex of rights vested by law
in a person suspected or accused of a crime to defend oneself
against suspicion or accusation. These rights are stipulated in
Articles 17, 52, 59 and other articles of the Code of Criminal
Procedure. The participation of a counsel for the defence in
this procedure is only one of the forms of the realization of
the right to legal defence. This circumstance is purposely
emphasized because one can get an impression that in legal
practice the right to defence implies only participation of a
counsel for the defence in the criminal procedure, whereas the
fact that the content of this constitutional principle is much
ampler is usually ignored.
In the first part of Article 58 of the Code of Criminal
Procedure it is established that "a counsel for the defence
must use all the means and ways of defence specified in the law
in order the circumstances justifying persons suspected,
accused or convicted of a crime or those extenuating liability
be exposed, and render legal support for mentioned persons".
This is a peremptory requirement of the Law on the Criminal
Procedure.
Item 3, part 2, Article 58 of the Code of Criminal
Procedure prescribes the right of a counsel for the defence to
see his defendant detained or arrested for a crime face-to-face
after the first interrogation. Therefore, it is important to
emphasize that in this case the following provision of the Law
on the Criminal Procedure is also valid: the content of the
information obtained from the defendant or communicated to him
may not contradict the requirement that the means and ways of
the defence must be lawful. However, as legal practice proves,
some counsels for the defence follow the principle "to win the
case". Such a position rather often contradicts the lawfulness
of the counsel's activity which is declared in the Law on the
Criminal Procedure. Putting it more precisely, the counsel's
wish "to win the case" by all means goes counter to the
principle of the criminal procedure implying that the court,
the procurator, the interrogator and the investigator must take
all the measures stipulated in the law in order to achieve
thorough and impartial investigation of the circumstances
pertaining to the case, accusing as well as justifying the
defendant, also circumstances attenuating or aggravating
liability of the accused person. In other words, the law
requires that authorities of legal protection should establish
the truth in a case, which is not always in the counsel's
interests.
The Law on the Criminal Procedure, while obligating the
interrogator and the investigator to fully and impartially
examine the circumstances of cases, also provides for the
preconditions of the investigation of these circumstances. The
conditions and procedure for interrogative actions and adoption
of decisions, also measures of procedural compulsion (measures
of suppression, for instance) help to establish truth in a
case. The norms of the criminal procedure also determine
separate rules of preventive nature, the purpose of which is to
guarantee the normal process of arguing. All this shall serve
for a thorough and impartial investigation.
The legislator, conforming to the necessity of the control
of evidence material, in item 3, part 2, Article 58 of the Code
of Criminal Procedure established such a rule by the Law of 10
December 1991: "In cases when there are grounds for maintaining
that such meetings will have negative influence on a thorough
and impartial investigation of the circumstances of the case,
an interrogator or investigator shall be allowed to participate
in the conversations between a counsel and a defendant and
control the correspondence with a person suspected or accused
of a crime within the first 15 days of detention or arrest;
further participation in the conversations of a counsel and a
defendant and control of correspondence shall be possible only
on the consent of a procurator or a judge." This is a
sufficiently civilized procedural norm. It does not impair the
right of individuals to defence, i. e. such right to defence as
it is interpreted by the now valid Code of Criminal Procedure.
Thus, the right established in item 3, part 2, Article 58
of the Code of Criminal Procedure is in complete accordance
with the set of procedural norms of special application that
eliminate obstacles of preliminary investigation. It entirely
conforms to the notion of the right to defence based on law.
Such a norm may not contradict the spirit and content of the
provision of the sixth part of Article 31 of the Constitution.
In the ruling of Vilnius 2nd District Court it is held
that the provision in question from the Code of Criminal
Procedure does not agree with Article 24 of the Law on the Bar
which runs: "It is forbidden to hinder the lawyer to meet his
client face-to-face". With regard to this, the following may be
stated. Firstly, according to Article 1 of the Code of Criminal
Procedure, the procedure for the investigation of criminal
cases shall be established by the Code of Criminal Procedure,
which is binding to all persons participating in the
proceedings, lawyers among them. Therefore, while speaking
about the matters concerning criminal procedure, it would be
incorrect to conform to the Law on the Bar. Secondly, the Law
on the Bar was adopted on 16 September 1992, and Article 58 of
a new edition of the Code of Criminal Procedure was adopted on
10 December 1991. Consequently, the Law on the Bar was passed
long after the new Article 58 of the Code of Criminal Procedure
had been valid and applied in practice. However, the legislator
has not established a competition of norms, and interpreted
Article 24 of the Law on the Bar as the prohibition to hinder
in non-permissible way the lawyer from meeting his client.
Furthermore, the Law on the Bar speaks about the clients in
general, whereas the Code of Criminal Procedure runs about a
person suspected or accused of the crime, i. e. about the
participant of the proceedings. Thus, the conditions
established in the Law on the Criminal Procedure for the
meeting of a counsel with his defendant, by no means may be
considered as hindering. Such is the judicial procedure.
The Constitutional Court
holds that:
1. In the sixth part of Article 31 of the Constitution it
is established: "From the moment of arrest or first
interrogation, persons suspected or accused of a crime shall be
guaranteed the right to defence and legal counsel."
The right to defence is universally recognized and
declared in international instruments. This right is usually
established in the national legislation of states as well.
Principle 17 of "The Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment",
approved by the 13 March 1989 Resolution (A/RES/43/1173) of the
United Nations General Assembly, runs that a detained person
shall have the right to legal counsel; immediately after
arrest, a competent body shall inform him about this right and
shall provide him with reasonable possibilities to exercise
this right.
Item 3, Article 6 of the European Convention on Human
Rights and Fundamental Freedoms it is established: "Everyone
charged with a criminal offence has the following minimum
rights: (a) to be informed promptly, in the language which he
understands and in detail, of the nature and cause of the
accusation against him; (b) to have adequate time and
facilities for the preparation of his defence; (c) to defend
himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice
so require; (d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against
him; (e) to have the free assistance of an interpreter if he
cannot understand or speak the language used in court.
2. The norms of the Code of Criminal Procedure are
actually in conformity according to their contents with the
international instruments regulating the right to defence. For
instance, Article 52 of this Code establishes the right of the
accused: 1) to know what charges are brought against him and to
give explanations with regard to the accusation; 2) to present
evidence; 3) to make requests; 4) upon the termination of
preliminary interrogation to get acquainted with the whole
material of the case; 5) to have a counsel for the defence; 6)
to participate in court hearing in the first instance court; 7)
to claim objections or challenges; 8) to appeal against the
actions and decisions of the interrogator, investigator,
procurator and court. Similar rights of a person suspected of a
crime are stipulated in Article 59 of the Code of Criminal
Procedure. Under Article 17 of the same Code the court,
procurator, interrogator or investigator are obliged to
guarantee for the accused a possibility to defend himself by
the prescribed in the law means against the accusation, and to
ensure the protection of his personal or property interests.
Other articles of the Code of Criminal Procedure prescribe the
procedure and ways for the implementation of the rights of a
person suspected or accused of a crime.
After examination of the norms guaranteeing the right to
defence the conclusion can be drawn that the content of this
right comprises the whole system of the rights and procedural
guarantees for a person suspected or accused of a crime which
provides the possibility to deny or call in dispute a suspicion
or accusation.
According to the presumption of innocence determined in
the first part of the Constitution, the burden of arguing in
the criminal proceedings is laid on the authorities of
interrogation and investigation. A person suspected or accused
of a crime does not have to prove his innocence. However,
exercising his right to defence, he may submit evidence or
arguments that deny the accusation. In other cases the measures
of defence may be used to reveal the circumstances attenuating
liability. Therefore, defence serves as a purposeful balance
for the criminal prosecution in order to protect the lawful
interests of a person suspected or accused of a crime.
Constitutional right to legal counsel is particularized in
various articles of the Code of Criminal Procedure. Article 53
of this Code determines the beginning of the participation of
the counsel for the defence in a case, Article 55 - the
procedure for the invitation, appointment and replacement of
the counsel, Article 56 - cases when the participation of the
counsel is obligatory. The first part of Article 58 of the Code
of Criminal Procedure contains the goals of the counsel's
participation in criminal proceedings: using measures and ways
of defence prescribed by law to find out the circumstances that
justify a person suspected, accused or convicted of a crime or
alleviate his liability, and to provide legal assistance for
him.
The goals of defence are in essence identical on the part
of the suspect or the accused and their counsels for the
defence. The procedural measures, by which said defence is
realized, differ, however. They are determined by the specific
character of the activity of a counsel as a professional
jurist. The rights and duties of a lawyer as a participant of
the process are defined by procedural laws, therefore he
independently realizes some elements of defence taking into
consideration the position of the defendant, though.
The right to legal counsel guaranteed by the sixth part of
Article 31 of the Constitution is realized in Article 53 of the
Code of Criminal Procedure, which prescribes that a counsel for
the defence may participate in the case from the moment of
arrest or first interrogation. From that moment a counsel
acquires the right to participate in the case throughout all
criminal proceedings.
The duties and rights of a counsel for the defence are
particularized in Article 58 of the Code of Criminal Procedure
the second part of which establishes the following rights: to
get acquainted with the protocol of detention or the decision
to bring a case, to participate in interrogation actions, ask
for certificates and other documents necessary for defence, to
state requests and objections or challenges, to appeal against
the actions and decisions of the interrogator, investigator,
prosecutor, judge or court, etc. Among those rights, there is a
provision in dispute stating that a counsel shall have a right
"to see a detained or arrested defendant after the first
interrogation face-to-face", as well as cases when an
interrogator or investigator is permitted to participate in the
conversations between a counsel and a defendant. The counsel's
right to see a defendant stipulated in said Article is somewhat
narrower than the right to have legal counsel which is
established in Article 31 of the Constitution and echoed in
Article 53 of the Code of Criminal Procedure. The emerging of
this right in said Articles is defined as follows: "from the
moment of arrest or first interrogation". On the other hand,
neither the norm in dispute nor other provisions of the Code of
Criminal Procedure contains the prohibition for a counsel for
the defence to see his defendant from the moment of his
detention. Such derivative right is presupposed by the general
norm of Article 53 of the Code of Criminal Procedure which in
fact literally echoes the norm of the sixth part of Article 31
of the Constitution. In this respect, the wording of the norm
of item 3, part 2, Article 58 of the Code of Criminal Procedure
is not precise enough, which is considered a lacuna the
elimination of which shall be the prerogative of the
legislator.
3. The petitioner calls in dispute the following provision
of the second part of Article 58 of the Code of Criminal
Procedure: "In cases when there are grounds for maintaining
that such meetings will have negative influence on a thorough
and impartial investigation of the circumstances of the case,
an interrogator or investigator may participate in the
conversations between a counsel and a defendant and control the
correspondence with a person suspected or accused of a crime
within first 15 days of detention or arrest; further
participation in the conversations of a counsel and a defendant
and control of correspondence shall be possible only on the
consent of a procurator or a judge."
Criminal laws and laws on criminal procedure establish
that every person who has committed a crime must be responsible
for a crime in compliance with the laws. Provisions on criminal
liability shall be implemented in the forms and ways determined
in the Law on Criminal Procedure. Namely this way shall serve
for the implementation of the main purpose of justice - to
lawfully and fairly punish a guilty person. If such purpose
were not achieved in criminal cases, the constitutional
provisions that ensure the right to life (Article 19), the
inviolability and human dignity of a person (Article 21), the
inviolability of a person's dwelling (Article 24) as well as
other rights and freedoms, would lose sense.
The Code of Criminal Procedure, while regulating the
participation of a counsel for the defence in a criminal case,
emphasizes the lawfulness of defence. In Article 58 of this
Code it is determined that a counsel for the defence must use
all the prescribed by the law measures and ways in order to
achieve the goals of defence. While evaluating the provision of
item 3, part 2, Article 58 of the Code of Criminal Procedure
from this perspective, the conclusions can be drawn that
confidentiality of meetings shall be restricted only in those
cases when the suspicion arises that the meetings of a counsel
and a defendant will have negative influence on the thorough
and impartial investigation of the circumstances of the case.
This provision shall not restrict the right to defence to a
person suspected or accused of a crime provided that the
measures and ways of lawful defence are used.
4. The national laws of the European countries as well as
international instruments also contain restrictions for a
counsel for the defence to meet his defendant face to face. For
example, the legislation of Sweden prescribe that confidential
meetings are possible only on the permission of an
investigator, procurator or judge. The refusal to permit such
meetings may be appealed against by a lawyer. Article 45 of the
Code of Criminal Procedure of Austria ensures the right for
defendant to consult with his counsel without the presence of a
court representative. However, by way of exception, when there
are circumstances due to which the conversation between a
lawyer and a defendant may have negative influence on the
collection of evidence, the order may be given to observe the
meetings of a lawyer with his defendant within first 14 days of
arrest. The legislation of various countries usually guarantee
confidentiality of the conversations between a person suspected
or accused of a crime and his lawyer, however they also contain
certain restrictions of this right (for instance, such
restrictions are present in the laws on criminal procedure of
Italy, Germany, Sweden, Belgium and other states. While
establishing such restrictions, the criminality rate on the
whole and especially organized crime shall be taken into
account. Such legal norms are aimed at preventing the
participants of criminal proceedings from implementing their
goals by unlawful measures.
Principle 15 of "The Body of Principles for the Protection
of All Persons Under any Form of Detention or Imprisonment",
approved by the General Assembly of the United Nations runs:
"regardless of exceptions determined in item 4, Principle 16
and item 3, Principle 18, a person detained or arrested may be
prevented from contacts with the outer world, i. e. his family
or legal counsel, only for a few days. Item 3 of Principle 18
of this Body prescribes the following exception: the right of a
person detained or imprisoned to see a counsel, get
consultation from him or maintain contacts with him in complete
confidentiality and without any censorship may not be suspended
or restricted, with the exception of particular circumstances
prescribed by the laws or rules of the laws, when the court or
another authority considers it necessary for the safety and
order.
The possibility to put restrictions on the meeting of a
counsel with his defendant has also been confirmed in the
European Court of Human Rights in the case of Campbell vs.
United Kingdom (1984). The European Court of Human Rights noted
that the provisions of Article 6 (3) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms may
be given wider interpretation, i. e. under certain exceptional
circumstances a state has the right to restrict the
confidentiality of legal consultation. When justified
suspicions arise that a counsel for the defence abuses his
procedural status and by the advice given to his defendant is
misleading the court or otherwise hinders the normal run of the
proceedings, a state may violate the principle of the privacy
of legal consultations.
Therefore, the conclusion can be drawn that the national
laws of the majority of democratic countries, the instruments
of international organizations and the European Court of Human
Rights provide for the legal preconditions for the restrictions
with regard to the communication of a person suspected of
accused of a crime and his counsel. However, there exists one
general requirement: - such restrictions may be established
only by law, within reasonable limits. The interpretation of
this notion falls under the legislator's jurisdiction, however
observance of the main guarantees applied for the persons
suspected or accused of a crime should not be ignored.
While evaluating the procedure for the restrictions on the
defendant's meetings with a counsel, it should be noted that
the guarantees to personal rights of a person suspected or
accused of a crime established in the Code of Criminal
Procedure the conception of which envisages the protection and
extension of the competition principle, should also be
subjected to particularization. This may be done by more
precise legal regulation of the actions of an interrogator and
investigator also terms which restrict the right of
confidential meetings with a counsel and by the establishment
of procedures and terms for appealing against these actions and
consideration of complaints.
5. The petitioner specifies that the constitutional right
to defence as well as to legal assistance may be grounded on
item 1, Article 23 and Article 24 of the Law on the Bar. A
counsel in legal proceedings, just like other participants of
the process, must abide by the Law on Criminal Procedure. In
part 2, Article 1 of the Code of Criminal Procedure it is set
forth that: "The criminal procedure prescribed by the Law on
Criminal Procedure shall be uniform and binding in all criminal
cases and to all courts, procurator's offices, interrogation
and investigation authorities, the bar, as well as other
related enterprises, organizations and individuals". The
Constitutional Court holds that the question raised by the
petitioner on the relationship among item 3, part 2, Article 58
of the Code of Criminal Procedure also part 1, Article 23 and
Article 24 of the Law on the Bar is a question of the collision
of norms, which does not fall under the jurisdiction of the
Constitutional Court. The elimination of collisions is the
legislator's prerogative.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55, 56 of the
Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court has passed the following
ruling:
To recognize that item 3, part 2, Article 58 of the Law of
the Republic of Lithuania on Criminal Procedure is in
conformity with the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.